Willie O'Dea (Limerick City, Fianna Fail)

I move amendment No. 15:

In page 9, line 6, after "same" to insert the following:

"or where different, in the aggregate not less favourable than,".

As for amendment No. 15, the basic point is that under the European Union directive, an agency worker must be put on the same level, in so far as possible, as a permanent employee. I simply am using a formula that has been used in other labour legislation to the effect that rather than stating that they will receive exactly the same rights, it states they will get benefits, rights or whatever that are "in the aggregate not less favourable than". While I understand the Minister may have some technical difficulty with this proposal, as he pointed out on Committee Stage, I seek clarification on it.

In respect of amendment No.16, the Minister has provided in the legislation that if an agency worker is taken on to do the same job as a permanent worker already employed, the employer is entitled not to pay the agency worker the same rate if knowledge, skill, length of service and so on are relevant factors. For example, someone who has been doing the same job for ten years may have built up a level of expertise that someone coming in naturally would not have on his or her first day and the legislation provides for this case. However, I refer to another scenario, whereby an employer can have some employees who were employed on a particular pay scale from a time when conditions in the country were much better. The same employer may, over the last 12 months or so when matters were very different, have taken on further employees to perform precisely the same work. However, the employer may have considered it necessary to employ them on a different pay scale. In such a scenario, it is not a case of experience, length of service and so on, but is a question of when the people were taken on. There are a number of instances in which people who were taken on since the recession kicked in are on a lesser pay scale, even though they are doing the same work as others who were taken on during better times.

I refer to a scenario in which such an employer decides to take on an agency worker to do the same type of work. The firm already has employees doing the work the agency worker will do but who are on two different wage scales. I asked the Minister on Committee Stage at which wage scale must such an agency worker be taken on and he replied it would be the newer, lower wage scale. I then asked who would choose and whether it would be the employer, the hirer or the agency worker. I believe the Minister told me the hirer had the choice as to which category of employee with which to compare the agency worker. However, there is some doubt about who can choose in this case. If the legislation means what the Minister told me on Committee Stage it means, it is as well to write it in specifically. That is the purpose of amendment No.16, the amendment in which I am most interested.

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